Appendix — County Line Joint Venture v. City of Grand Prairie

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88-122 -| eT LED.

JUL 18 1988

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No. 88- | JOSEPH F. SPANIOL, JR

IN THE

Supreme Court of the United States

TERM, 1988

COUNTY LINE JOINT VENTURE,

Petitioner,

CITY OF GRAND PRAIRIE, TEXAS,

Respondent.

ON PETITION FOR CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

APPENDIX TO PETITION FOR CERTIORARI

Wm. CHARLES BUNDREN

Counsel of Record

JACKSON & WALKER

6000 First RepublicBank Plaza

901 Main Street

Dallas, Texas 75202

(214) 953-6039

Attorneys for Petitioner

July 18, 1988

TABLE OF CONTENTS

Appendix A

Order of District Court for the Northern District of

Texas, Dallas Division, granting Plaintiffs Motion

for Partial Summary Judgment, dated

November 20, 1986

Appendix B

Order of District Court for the Northern District of

Texas, Dallas Division, vacating Court’s Order

granting Plaintiff's Motion for Partial Summary

Judgment, dated November 21, 1986

Appendix C

Order of District Court for the Northern District of

Texas, Dallas Division, granting summary

judgment to Defendant, dated March 18, 1987

Appendix D

Opinion of Fifth Circuit Court of Appeals dated

March 18, 1988

Appendix E

Order of Fifth Circuit Court of Appeals denying

Appellant’s Motion for Rehearing and Suggestion

for Rehearing En Banc, dated April 19, 1988

Appendix F

City of Grand Prairie Ordinance No. 2750 granting

County Line a Specific Use Permit, dated

August 31, 1976

Appendix G

City of Grand Prairie Ordinance No. 3745 (Section

B-713 of the City’s Comprehensive Zoning Ordi-

nances) relating to termination of specific use

permits, dated February 19, 1985

Page

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5a

6a

13a

24a

26a

32a

TABLE OF CONTENTS — (Continued)

Page

Appendix H

Appeal of County Line to Zoning Board of Adjust- 35a

ments and Appeals, dated December 17, 1985

Appendix I

46a

Denial of Jurisdiction of Appeal to City of Grand

Prairie, dated January 7, 1986

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APPENDIX A

IN THE UNITED STATES District Court

For THE NORTHERN DiIstTRICT OF TEXAS

DALLAS DIVISION

COUNTY LINE JOINT VENTURE

vs. No. CA3-86-1919-F

City OF GRAND PRAIRIE, TEXAS

ORDER

Before the Court comes Plaintiff's Motion for Partial Summary

Judgment. The motion is granted.

I. FACTS

Plaintiff owns a nightclub in Grand Prairie on land that the city

had zoned “commercial — office.” On August 31, 1976, an ordi-

nance granting a specific use permit to sell alcoholic beverages on

this land was passed and approved. The property has been used as

a nightclub for about 10 years. On November 17, 1985, Plaintiff's

lessee applied to the Defendant for an alcoholic beverage license.

The application was denied by the City Secretary of Grand

Prairie under the Defendant’s Comprehensive Zoning Ordinance,

Section B-713.

Plaintiff and Plaintiffs lessee thereafter appealed to the Zoning

Board of Adjustments and Appeals for the City of Grand Prairie.

This Board refused to hear the appeal, and gave no reason

therefor.

Neither Plaintiff nor his lessee was given a hearing with respect

to the termination of the specific use permit. The Defendant did

not send written notice of the hearing in which the zoning change

was made to any of the owners of property over which a specific

use permit had been previously granted by Defendant.

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II. DUE PROCESS

Plaintiffs use of his land to sell alcoholic beverages for on-

premises consumption is a significant property interest, protect-

able by the due process clause of the United States Constitution.

See McCulloch v. Glasgow, 620 F.2d 47, 50 (Sth Cir. 1980).

When there is a protected property interest, then the right to a

hearing is paramount. Board of Regents v. Roth, 408 U.S. 564,

569-570 (1972). In Mathews v. Eldridge, 424 U.S. 319, 335

(1976), the Supreme Court announced three factors to determine

whether a state procedure satisfies due process.

1. The private interest that will be affected by the official

action;

2. the risk of an erroneous deprivation of such interest through

the procedures used, and the probable value, if any, of additional

or substitute procedural safeguards; and

3. the government’s interest, including the function involved

and the fiscal and administrative burdens that the additional or

substitute procedural requirements would entail.

Here, Plaintiff has a strong interest in seeing that it can sell

alcoholic beverages on its property. Second, the Defendant, by

relying on its City Secretary to determine whether the land can be

used to sell alcoholic beverages and providing no hearings and no

appeals ran a great risk of erroneously depriving Plaintiff of his

property interest. Lastly, the government would suffer no undue

fiscal or administrative burdens by enabling Plaintiff to appeal the

determination to the City Secretary to the Zoning Board since

that is what the Zoning Board is for.

Therefore, the Court finds that the Defendant deprived Plaintiff

of his property without due process of law.

3a

Ill. CONSTITUTIONALITY OF ORDINANCES

Plaintiff next argues that the disputed ordinances violate the

Texas Constitution. The Court has decided that such ordinances

do violate the Texas Constitution.

Article XI, Section 5 of the Texas Constitution provides in part

that:

[N]o charter or any ordinance passed under said charter

shall contain any provision inconsistent with the Constitution

of the State, or of the general laws enacted by the Legislature

of this State... . Tex. Const. art. XI, § 5.

All the disputed ordinances directly conflict with the Texas

Alcoholic Beverage Code (“TABC”), because they in one way or

another restrict the sale of alcohol in a way that is reserved to the

TABC. See TABC §§ 1.06, 109.31, 109.32(a)(1) (Vernon

1978). The ordinances therefore violate the Texas Constitution.

See Royer v. Ritter, 531 S.W.2d 448, 449 (Tex. Civ. App. —

Beaumont 1975, writ ref'd n.r.e.).

IV. INVALIDITY OF ORDINANCES

Lastly, Defendant failed to provide Plaintiff with requisite

statutory notice for a public hearing concerning ordinances No.

3745 and 3754. These ordinances effectively added the ordinances

B-711, B-710, and B-713 to the Comprehensive Zoning Ordi-

nance of Defendant.

Written notice to property owners affected by a zoning change

is required. Tex. Rev. Civ. Stat. Ann. art. 1011f (Vernon 1963).

With neither ordinance 3754 nor 3745 was written notice pro-

vided. Notice by publication is also required for zoning changes.

Id. Again, with neither ordinance 3754 nor 3745 was proper

publication notice given. With the former, nothing was published

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at all. With the latter, 10 days notice was given, but 15 days notice

is required. Therefore, no proper notice was given.

The Texas Supreme Court held that the Courts of this state

have held ordinances and amendments to ordinances invalid

where the express, mandatory provisions of the zoning statute

have not been complied with. The steps directed to be taken for

notice and hearing, when provided for in the law, are intended for

the protection of the property owner, and are his safeguards

against the exercise of arbitrary power. Each act required is

essential to the exercise of jurisdiction by the City Council, and

each must be rigidly performed. Bolton v. Sparks, 362 S.W.2d

946, 950 (Tex. 1962).

Therefore, the Court holds that the two ordinances, No. 3754

and 3745 are invalid.

So ORDERED this 20th day of November, 1986.

/s/ Jerry BUCHMEYER

for ROBERT W. PORTER

UNITED STATES DISTRICT JUDGE

Sa

APPENDIX B

IN THe Unrrep States District Court

For THE NORTHERN District oF TEXAS

DALLAS DIVISION

CouNTY LINE JOINT VENTURE

v. No. CA3-86-1919-F

City OF GRAND PRAIRIE, TEXAS

ORDER

The Court’s Order granting partial summary judgment for

Plaintiff is hereby vacated, because it was prematurely entered.

So ORDERED this 21st day of November, 1986.

/s/ Jerry BUCHMEYER

UNITED STATES DISTRICT JUDGE

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APPENDIX C

IN THe Unrrep States District Court

For THE NorRTHERN District or TEXAS

DALLAS DIVISION

COUNTY LINE JOINT VENTURE

vs. No. CA3-86-1919-F

Crry OF GRAND PRAIRIE, TEXAS

ORDER

Before the Court come cross motions for summary judgment.

The Court hereby denies Plaintiff's motion and grants Defen-

dant’s motion.

This dispute arises from a change in zoning ordinances.

Plaintiff seeks basically three things. First, Plaintiff wants a

judgment declaring that the lack of any procedural mechanism to

appeal or otherwise challenge the decision of the city secretary

constitutes a denial of Plaintiff's procedural due process rights.

Second, he wants a judgment declaring the ordinances unconsti-

tutional under the Texas Constitution. Third, he wants an injunc-

tion enjoining the City from enforcing its ordinances. Plaintiff

claims a denial of substantive due process (Complaint § 5.5) but

does not raise this in his motion for summary judgment. The

questions of whether Defendant's ordinances are unconstitutional

or invalid are not federal questions; these are questions of state

law and the Court has pendent jurisdiction over them. United

Mine Workers v. Gibbs 383 U.S. 715, 726 (1966).

Summary judgment is appropriate when there is no issue of

material fact and it is clear that the movant is entitled to

judgment as a matter of law. See Rule 56(c); Joe Reguiera, Inc.

v. American Distilling Co., Inc., 642 F.2d 826, 829 (Sth Cir.

1981). When a motion for summary judgment is made and

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supported as provided in this rule, an adverse party may not rest

upon the mere allegations or denials of his pleading, but his

response, by affidavits or as otherwise provided in this rule, must

set forth specific facts showing that there is a genuine issue for

trial. If he does not so respond, summary judgment, if appropri-

ate, shall be entered against him. Rule 56(¢) (emphasis added).

The Court first considers Plaintiff's motion for summary judg-

ment and first considers Plaintiff's claim that Defendant under

color of law deprived Plaintiff of his procedural due process rights.

It is not clear whether a Plaintiff can state a claim for the

violation of his procedural due process rights in the context of a

zoning case at all. Traditionally, zoning decisions were considered

legislative and therefore no Plaintiff could complain of procedural

due process violations. The Fifth Circuit has said that “Our

opinions repeatedly characterize local zoning decisions as ‘legisla-

tive’ in nature. If this word is used advisedly — as it appears to

be — then the plaintiffs cannot complain of a denial of procedural

due process, for no constitutional limitation on legislative proce-

dure is relevant here. Most of the cases developing procedural

limitations on government action involve challenges to adminis-

trative decisions. The plaintiffs do not cite a single federal case

that even discusses procedural requirements for zoning matters,

let alone one that reverses a zoning decision because of a

procedural failure.” Couf v. DeBlaker, 652 F.2d 585, 590 (Sth

Cir. 1981). The Fifth Circuit held that “The on/y question which

federal district courts may consider is whether the action of the

zoning commission is arbitrary and capricious, having no substan-

tial relation to the general welfare.” South Gwinnett Venture v.

Pruitt, 491 F.2d 5, 7 (1974) (en banc) (emphasis added). The

Court stated that such a procedural due process claim was

rightfully dismissed at the district court level. /d.

Whether this is stili the rule is uncertain. The Fifth Circuit held

in another zoning case that “Even when the deprivation of a

——_Le ee

ALAND RRR eR TSE MeN mR icon NTI Fee

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property right triggers procedural due process standards that may

require a state agency to be able to point to a rational basis

employed in reaching its decision, as opposed to a basis later

hypothesized by others, nothing requires proof of the, as distin-

guished from a, basis of decision.” Shelton v. City of College

Station, 780 F.2d 475, 484 (Sth Cir. 1986) (en banc). However,

the same decision holds that “whatever be the role of procedural

due process here, we are persuaded, as were the district court and

the panel, that [a board member’s] mere membership in a church

that also opposed the grant of the variances does not by itself

establish bias... .” Jd. at 485-486. The dissent reads the majority

as having admitted that procedural due process scrutiny might

properly apply to a Zoning Board’s decision. Jd. at 488.

The only similar cases to handle this issue after Shelton do not

directly consider the issue of whether a procedural due process

claim can be stated in the context of a zoning decision. The

Courts did decide that the procedural due process claims were

without merit. In Horizon Concepts, Inc. v. City of Balch Springs,

789 F.2d 1165 (Sth Cir. 1986), the Court rejected claims of

deprivation of procedural due process because the Plaintiff had

had opportunities to be heard and had ignored most of them. Jd.

at 1168-1169. Another post Shelton decision also held that there

is no procedural due process claim where the Plaintiff had an

adequate opportunity to be heard. Abraham v. City of Mandeville,

638 F. Supp. 1108, 1113 (E.D. La. 1986). The Fifth Circuit

apparently has an undeclared policy of hearing procedural due

process claims on zoning decisions. Therefore, the Court will

consider Plaintiff's claim that Defendant under color of law

deprived Plaintiff of his procedural due process rights.’

' This conclusion is also supported by Schafer v. City of New Orleans, a pre

Shelton case, which notes that there is no procedural due process deprivation

where the Plaintiffs had actual notice of the introduction of the ordinance and

appeared at the hearing preceding its adoption. Schafer v. City of New Orleans,

743 F.2d 1086, 1089 (Sth Cir. 1984). The logical corollary is that when a person

a

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Plaintiff claims that the following are uncontroverted facts that

support his motion for summary judgment. Plaintiff owns certain

property, which has been used for at least 10 years as a night club.

During the six-month period prior to the adoption of § B-713,

alcoholic beverages or mixed beverages were sold at Plaintiffs

property. An ordinance granting a specific use permit to sell

alcoholic beverages at Plaintiff's property was passed and ap-

proved on August 31, 1976. The property is and was, at the time

of termination of the specific use permit, entirely within an area

zoned “Commercial — office” by the Defendant. On Novem-

ber 27, 1985, Jose G. Gomez (Plaintiff's lessee) applied to the

City for (i) an alcoholic beverage license; (ii) a dance hall

license, and, (iii) a mechanical amusement device license. On

December 2, 1985, the Defendant, by and through the City

Secretary, denied all three of Mr. Gomez’ applications pursuant

to § B-713 of Defendant’s Comprehensive Zoning Ordinance (the

“Ordinance.”) Plaintiff was not personally notified of any hearing

at which time the City Council of the Defendant was to discuss

adoption of the then-proposed § B-713 of the Ordinance (relating

to the terminatior of specific use permits) or of any hearing at

which time the —.<y Council of the Defendant was to discuss

adoption of the then proposed §§ B- 710 and B-711 of the

Ordinance (relating to proposed requirements to obtain a specific

use permit for the on-premise sale of alcoholic beverages.

having a valuable property right is not notified of the introduction of the

ordinance and is therefore unable to attend hearings, then his procedural due

process rights are violated and he may seek redress. Surprisingly, Plaintiff does

not cite this case, nor does Plaintiff raise the issue of whether it was deprived of

procedural due process because it was not notified of the hearing for the

adoption of the ordinances. Plaintiff only mentions that it received no notice of

the hearing in connection with the state law claim that the ordinances are not

valid. Since the issue is not raised or briefed, this Court will not decide it. John

Deere Co. v. American Nat. Bank, Stafford, No. 86-2830, slip op. at 2371 (Sth

Cir. Feb. 17, 1987).

10a

Defendant directly controverts Plaintiff's allegedly uncontro-

verted fact that the City Secretary of Defendant denied all of Mr.

Gomez’ applications pursuant to § B-713. See affidavit of Defen-

dant City Secretary Sue Shawver. Therefore, Plaintiff is not

entitled to summary judgment on his procedural due process

claim, because there is a genuine issue of material fact as to

whether the Defendant’s City Secretary denied Plaintiffs lessee’s

applications pursuant to § B-713.

The Court now turns to the Defendant’s motion for summary

judgment. Defendant argues that it is entitled to summary judg-

ment on the ground that it did not violate Plaintiff's procedural

due process rights.

Defendant’s summary judgment evidence is as follows. The

Defendant has a procedure for requesting the right to use prem-

ises which was not utilized by Plaintiff. See affidavit of R. Clayton

Hutchins, Defendant’s City Attorney; affidavit of Jerry Sylo,

Planning Technician of Defendant; Plaintiff's answer to Defen-

dant’s request for admission No. 2, (wherein Plaintiff admits that

neither he nor his lessee has ever made application for a certifi-

cate of occupancy for the property in question). Plaintiff has not

attempted to controvert Defendant’s uncontroverted facts by

means of any summary judgment evidence as required by Rule

56(e).?

Because Plaintiff has not applied for a certificate of occupancy,

Plaintiff has not complied with Ordinance B-1001, which pro-

? In its Response to Defendant’s Motion for Summary Judgment and Reply to

Defendant’s Response to Plaintiff's Motion for Partial Summary Judgment,

Plaintiff alleges that it is “undisputed that because Plaintiff's specific use permit

had been terminated, any request for a Certificate of Occupancy would have

been futile.” Plaintiff does not supply or indicate any summary judgment

evidence establishing that it is undisputed that such a request would have been

“futile.” Quite the contrary, the Court only sees Defendant’s evidence that such

a request, if made in conformance with the City’s ordinances, would not have

been futile. Plaintiff has not attempted to controvert such evidence.

lla

vides® that before a building may be used, it must have been

inspected to see that it complies with the City’s Building Code.

Because Plaintiff does not comply with B-1001, plaintiff does not

comply with B-700. Ordinance B-700 provides * that before a

person can use property for the sale or distribution and on-

premise consumption of alcohol, he must first obtain a specific

use permit and that to obtain such a permit, he must also comply

with all other ordinances of the City, which would logically

include B-1001.

The Court does not see how the Plaintiff can complain of

having been deprived of property without procedural due process

when the Plaintiff hasn’t even attempted to use the procedures

available to him.

> B-1001: No building hereafter erected, converted or structurally altered shall

be used, occupied or changed in use and no land may be used until a Certificate

of Occupancy and Compliance shall have been issued by the Building inspector

of the City of Grand Prairie stating that the building or proposed use of land or

building complies with the provisions of this Ordinance and other building laws

of the City of Grand Prairie.

*B-700 ALCOHOLIC BEVERAGES. SALE OR DISTRIBUTION AND

ON-PREMISE CONSUMPTION OF:

ANY PERSON, FIRM OR CORPORATION THAT PROPOSES TO USE

ANY PROPERTY IN THE CITY ZONED COMMERCIAL-OFFICE,

COMMERCIAL, CENTRAL AREA, LIGHT INDUSTRIAL, HEAVY IN-

DUSTRIAL, OR PLANNED DEVELOPMENT FOR THE SALE OR

DISTRIBUTION AND ON-PREMISE CONSUMPTION OF ALCO-

HOLIC BEVERAGES SHALL BE REQUIRED TO OBTAIN SPECIFIC

USE ZONING AFTER APPLICATION THEREFOR AND PUBLIC

HEARING BEFORE THE PLANNING AND ZONING COMMISSION

AND THE CITY COUNCIL AS OTHERWISE PROVIDED IN THE

ZONING ORDINANCE OF THE CITY; PROVIDED THAT THE APPLI-

CATION FOR SUCH LAND USE, IN ADDITION TO, BUT NOT LIMI-

TATION OF, ANY OTHER REQUIREMENT IN SAID ZONING

ORDINANCE, AS A CONDITION FOR THE SAID USAGE OF PROP-

ERTY, COMPLY WITH ALL ORDINANCES, REGULATIONS AND

CONDITIONS OF THE CITY OF GRAND PRAIRIE, AND ALL STATE

AND FEDERAL LAWS AND REGULATIONS. ...

12a

The Court therefore grants summary judgment for Defendant

on the ground that there is no genuine issue of material fact

concerning Defendant’s summary judgment evidence, and the

Defendant is entitled to judgment as a matter of law. Horizon

Concepts, 789 F.2d at 1168-1169; Abraham, 638 F. Supp. at 1113.

Since Plaintiffs one federal claim has been dismissed, the

Court declines to exercise pendent jurisdiction over Plaintiff's

state claims. Gibbs, 383 U.S. at 726. Further, review of municipal

zoning is within the domain of the states, Shelton v. City of

College Station, 780 F.2d 475, 477 (Sth Cir. 1986), and the

district courts should avoid exercising pendent jurisdiction over a

zoning matter Smith v. City of Picayune, 795 F.2d 482, 489 (Sth

Cir. 1986) (Higginbotham, J. concurring). Therefore, this Court

dismisses the rest of the action without prejudice.

So ORDERED this 18th day of March, 1987.

/s/ ROBERT W. PORTER

ROBERT W. PORTER

UNITED STATES DISTRICT JUDGE

5 RIE

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APPENDIX D

County Line Joint Venture

v.

Grand Prairie, Tex.

COUNTY LINE JOINT VENTURE,

Plaintiff-Appellant,

Ve

The City OF GRAND PRAIRIE, TEXAS,

Defendant-Appellee.

No. 87-1304.

United States Court of Appeals,

Fifth Circuit.

March 18, 1988.

Appeal from the United States District Court for the Northern

District of Texas.

Before CLARK, Chief Judge, BRIGHT,* and GEE, Circuit

Judges.

BRIGHT, Circuit Judge:

County Line Joint Venture (County Line) brought suit for

injunctive relief and monetary damages against the City of Grand

Prairie, Texas (City) on the grounds that it violated County

Line’s constitutional and state-created rights by applying a city

zoning ordinance which automatically extinguished County Line’s

specific use permit (SUP) for six months of non-use. The

constitutional violations allegedly committed by the City include

a denial of procedural due process, substantive due process, equal

protection and fifth and fourteenth amendment taking. The dis-

ee

l4a

trict court ' granted summary judgment in favor of the City on the

procedural due process issue and dismissed the entire action. We

affirm the district court’s grant of summary judgment as to the

procedural due process issue but reverse the district court’s

dismissal of this action and remand for further proceedings

consistent with this opinion.

I. BACKGROUND

County Line owns certain real property located in Grand

Prairie, Texas. In 1976, County Line sought and received an SUP

permitting it to sell alcoholic beverages on the premises.’ In

February 1985, the city council passed an ordinance entitled

§ B-713 which automatically terminates all SUPs that are not

used for a period of six months.’ The City gave public notice in a

'The Hon. Robert W. Porter, Chief United States District Judge for the

Northern District of Texas.

? The city zoned the property for commercial use. However, an SUP, as an

amendment to the zoning ordinance, in this case permitted the sale of alcoholic

beverages where they could not otherwise be sold.

> Section B-713 provides as follows:

A. All specific use permits approved in accordance with the provisions of

this ordinance in its original form or as hereafter amended shal! automati-

cally terminate upon cessation of the use for a period of six months, .

regardless of the intention of the owner.

B. Any specific use permit granted by the City Council shall automati-

cally terminate if a building permit has not been obtained on the premises

within one year from the date the ordinance granting the specific use permit

is adopted.

C. On any tract of land for which a specific use permit has been granted

and the use has ceased as of the date of this ordinance, such specific use

permit shall automatically terminate six months after the adoption of this

ordinance unless the use has been reinstated by that time.

D. Specific use permits in existence as of the date of this ordinance shall

automatically terminate one year from the date of this ordinance if a

building permit has not been obtained by that time.

Grand Prairie, Tex., Ordinances § B-713.

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1Sa

local newspaper that it was considering such an amendment and

subsequently held a public hearing on the proposed ordinance.

On November 27, 1985, County Line’s current tenant applied

to the city secretary for an alcoholic beverage license, dance hall

license, and a mechanical amusement device license. The city

secretary checked the records to determine whether issuance of

such licenses was appropriate. Her research disclosed that the

property had been unoccupied for approximately one year and

that pursuant to Ordinance § B-713, County Line no longer

possessed an SUP. Because no license could be issued without an

SUP, the secretary denied the license applications.

Following the city secretary’s denial, County Line attempted to

appeal the city secretary’s decision regarding the SUP’s termina-

tion to the zoning board of adjustments and appeals. The zoning

board determined that it lacked jurisdiction to hear any complaint

regarding a city secretary decision because the zoning board had

jurisdiction over zoning matters which, by definition, did not

include the city secretary’s licensing decisions of an official of the

city. County Line brought this claim for relief for violation of its

civil rights and pendant state claims in United States District

Court.

Both parties moved for summary judgment on the procedural

due process claim. The district court granted summary judgment

in favor of the City, and it apparently assumed that there were no

other remaining federal claims. The district court then declined to

exercise jurisdiction over the remaining pendant state law claims.

With such a disposition, the district court granted a dismissal of

the action. County Line then brought the present appeal.

We now turn to County Line’s claim that its constitutional

rights have been violated by the City of Grand Prairie.

II. DISCUSSION

A. Procedural Due Process

In an attempt to delineate the relationship between property

owners’ rights and zoning ordinances, courts and commentators

indicate that the existence of procedural due process rights

depends upon how the court views zoning ordinances and deci-

sions. D. Mandelker, J. Gerand & E. Sullivan, Federal Land Use

Law, § 2.03 (1986); Developments in the Law — Zoning, 91

Harv.L.Rev. 1427 (1978). The City asserts that this court should

view the City’s conduct in adopting and applying § B-713 as a

legislative act.

[1] Generally, if the court views the governmental conduct as

legislative, the property owner has no procedural due process

rights. “When the legislature passes a law which affects a general

class of persons, those persons have all received procedural due

process — the legislative process. The challenges to such laws

must be based on their substantive compatibility with constitu-

tional guarantees.” 2 R. Rotunda, J. Nowak & J. Young, Trea-

tises on Constitutional Law; Substance and Procedure, § 17.8,

p. 251 (1986). The large number of people affected by the

legislative process ensures that the legislature will act reasonably.

Rogin v. Bensalem Township, 616 F.2d 680, 693-94 (3d Cir.

1980), cert. denied, 450 U.S. 1029, 101 S.Ct. 1737, 68 L.Ed.2d

223 (1981).

County Line urges this court to view the ordinance and its

application under an administrative/adjudicative model. County

Line argues that it has a protectable property interest in the SUP

and that the City violated its right to procedural due process when

the City considered and enacted the statute without giving

County Line personal notice. See Board of Regents v. Roth, 408

U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Further, County

Line argues that the City violated County Line’s right to procedu-

ral due process when the City failed to give County Line personal

17a

notice and a hearing prior to the time the ordinance operated to

extinguish its SUP. County Line also contends that the City

violated its due process rights when the city secretary denied the

requested licenses because County Line did not have the proper

zoning.

[2] If the action of the city council is viewed as administra-

tive/adjudicative, procedural due process rights may attach.

These procedural rights follow only if the landowner establishes a

property right created by state or local law. The amount of process

due depends upon the balancing of interests as enunciated in

Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18

(1976).*

Conduct of a municipal body is likely to be deemed legislative

when an elected group, such as a city council, makes a general

zoning decision which applies to a large group of interests.

Conversely, a municipal body’s action may be more likely termed

adjudicative if an appointed group, such as a zoning board, makes

a specific decision regarding a specific piece of property. See

Developments, supra.

As a preliminary matter to resolving whether the city council

acted in an administrative or legislative capacity in enacting the

ordinance, we review this court’s decisions in South Gwinnett

Venture v. Pruitt, 491 F.2d 5 (Sth Cir.) (en banc), cert. denied,

416 U.S. 901, 94 S.Ct. 1625, 40 L.Ed.2d 119, cert. denied, 419

U.S. 837, 95 S.Ct. 66, 42 L.Ed.2d 64 (1974); Couf v. DeBlaker,

“The court in Mathews identified three interests which must be balanced.

' Those factors are as follows:

First, the private interest that will be affected by the official action; second,

the risk of an erroneous deprivation of such interest through the procedures

used, and the probable value, if any, of additional or substitute procedural

safeguards, and finally, the Government's interest, including the function

involved and the fiscal and administrative burdens that the additional or

substitute procedural requirement would entail.

424 U.S at 335, 96 S.Ct. at 903.

18a

652 F.2d S85 (Sth Cir.1981), cert. denied, 455 U.S. 921, 102

S.Ct. 1278, 71 L.Ed.2d 462 (1982); and Shelton v. City of

College Station, 780 F.2d 475 (Sth Cir.) (en banc), cert. denied,

—US.—, 106 S.Ct. 3276, 91 L.Ed.2d 566, cert. denied,

— US. —, 107 S.Ct. 89, 93 L.Ed.2d 41 (1986).

In Pruitt, the plaintiffs/appellants owned land zoned partially

for residential use and partially for commercial use. The landown-

ers sought to have the property rezoned to accommodate apart-

ments. The local planning commission recommended the change,

but the county commissioners denied the request. The landowners

asserted that the county commissioners violated the owners’ rights

to equal protection and due process of law when the commission,

according to the owners, failed to explain the basis for its decision.

The court, en banc, held that “local zoning is a quasi-legislative

procedure, not subject to federal juridical consideration in the

absence of arbitrary action.” 491 F.2d at 7. The court went on to

hold that this view is applicable to the adoption of comprehensive

zoning plans as well as the reclassification of a particular piece of

property.

Thus, Pruitt expresses the viewpoint that a zoning decision,

made by an elected body such as a county commission, should be

deemed legislative, not administrative.

In Couf, a developer purchased waterfront property with the

intent of building condominiums. At the time of purchase, the

zoning permitted the desired building. However, by the time the

developer finally applied for a building permit, the city commis-

sion instructed the planning commission that all property on the

waterfront, including the developer’s property, be “down zoned,”

and the planning commission should refuse to accept applications

for building permits. The developer asserted that he was deprived

of his property without due process of law.

The court determined that Pruitt controlled the disposition of

the procedural due process claim. The court stated, as follows:

19a

Our opinions repeatedly characterize local zoning deci-

sions as “legislative” in nature. (Citations omitted.) If this

word is used advisedly— as it appears to be — then the

plaintiffs cannot complain of a denial of procedural due

process, for no constitutional limitation on legislative proce-

dure is relevant here. (Citations omitted.)

652 F.2d at 590. Again, this court reaffirmed its view that zoning

decisions, at least those made by elected bodies, are legislative,

thus no procedural due process rights apply.

In Shelton, the landowner sought a variance for the parking

requirements which would be enforced if the landowner changed

the type of business conducted on the premises. 780 F.2d at 477.

All three attempts to convince the city zoning board to grant the

variance failed. The landowner then brought suit, claiming a

violation of substantive and procedural due process. The en banc

court in Shelton not only reaffirmed the view that the procedural

aspect of zoning decisions are viewed under the legislative model

but also considered, at great length, whether a claim of substan-

tive due process violation should be viewed under the legislative

or administrative model. The court flatly rejected the administra-

tive model in favor of the legislative model.

The dissent in Shelton took issue with the majority's conclusion

that a zoning board of adjustment, as an appointed body with

limited power, could be cloaked with the deference given to

legislative actions. The dissent contended that an appointed body

making specific decisions regarding specific property ought to be

held to a higher standard. See 780 F.2d at 488 (Rubin & Tate,

J.J., dissenting).

Although we recognize that circumstances may arise in which

the zoning decision of a governmental body, such as a county

commission or a city council, may require some precedural due

process, the circumstances presented in this case do not call for

such a ruling.

20a

[3] The enactment of the ordinance was a result of a purely

legislative act by the city council of Grand Prairie, an elected

body which wields broad power to make a decision in the area of

city planning and zoning. The ordinance in question applies

generally to all SUPs in existence and those thereafter created.

County Line presented no evidence that the city council aimed

the ordinance specifically at County Line rather than calling for

termination of all SUPs which had suffered non-use for a period

of at least six months. Because the city council possesses exten-

sive legislative powers and had enacted an ordinance general in

scope, we must apply the legislative model to the ordinance here

in question and reject County Line’s argument that it has a

cognizable claim for relief for violation of procedural due process.

[4] County Line’s alternative argument — that the action by

the city secretary deprived it of procedural due process — lacks

any merit. The city secretary possessed no power to make zoning

decisions. Thus, her decision had no effect on the existence or

non-existence of the SUP. Indeed, the city secretary's decision

could very well have been wrong.

This case has similarities to the circumstances revealed in

Texaco, Inc. v. Short, 454 U.S. 516, 102 S.Ct. 781, 70 L.Ed.2d

738 (1982). In Texaco, owners of severed mineral interests

appealed the application of an Indiana statute which automati-

cally extinguished a mineral interest if not used for a period of

twenty years.* The statute did not provide for notice to the owner

of the mineral estate prior to the lapse, but it did provide that the

*The Indiana statute, known as the Mineral Lapse Act, Ind. Code

§§ 32-5-11-1 to 8 (1976), provides that the owner of the mineral interest who

fails to use the interest for a period of twenty years automatically loses the

interest, with the interest reverting back to the surface owner. A use of the

interest includes the actual or attempted production of minerals, or the paying of

taxes or royalties. The owner could also prevent a lapse if the owner files a

statement of claim with the local recorder of deeds.

2la

surface owner may give notice to the mineral owner subsequent to,

the lapse.

The mineral interest owners argued a denial of procedural due

process, first because the state failed to notify them of the

requirements of the new law, and second because the statute did

not require the surface owner to give notice prior to the lapse. The

Supreme Court found no merit in either argument.

The Court rejected the argument that the mineral owner

should have been given notice of the requirements of the new law

even though the owner establishes a property interest. The Court

stated that “[i]t is well established that persons owning property

within a State are charged with knowledge of relevant statutory

provisions affecting the control or disposition of such property.”

Id. at 532, 102 S.Ct. at 793 (citing North Laramie Land Co. v.

Hoffman, 268 U.S. 276, 283, 45 S.Ct. 491, 494, 69 L.Ed. 953

(1925).

After holding that the mineral interest owners were presumed

to know the contents of the lapse statute, the Court addressed the

issue of whether, given that knowledge, the owners were entitled

*The Court in Texaco also stated that “a legislature need do nothing more

than enact and publish the law, and afford the citizenry a reasonable opportunity

to familiarize itself with its terms and to comply.” 454 U.S. at 532, 102 S.Ct.

at 793. The Cdurt found that the two-year grace period, which allowed a mineral

interest owner to protect an interest which would otherwise lapse upon the

effective date of the statute, foreclosed any argument that the mineral interest

owners did not have a reasonable opportunity to familiarize themselves with the

law. In this case, the City did not provide a grace period. Rather, non-use for a

six-month period after the effective date of the ordinance resulted in automatic

extinguishment of the SUP. In light of the interest involved in this case, an SUP,

compared with the interest involved in Texaco, a fee in the minera! interest, we

determine that the six-month period in which County Line should have

informed itself of the ordinance to be reasonable, particularly because the City

gave public notice of its consideration and subsequent adoption of the ordinance.

See id. (courts should show great deference to legislative judgment regarding

adequacy of grace period).

22a

to a pre-lapse notice from the surface owners. Id. 454 US., at

533, 102 S.Ct. at 794. The Court, after noting the difference

between a self-executing statute and a subsequent judiciai deter-

mination of a lapse, determined that the mineral interest owner is

not entitled to notice of the application of the self-executing

statute. In doing so, the Court held that the notice requirements

of Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306,

70 S.Ct. 652, 94 L.Ed. 865 (1950), were inapplicable. As the

Court in Texaco stated:

The reasoning in Mullane is applicable to a judicial pro-

ceeding brought to determine whether a lapse of a mineral

estate did or did not occur, but not to the self-executing

feature of the Mineral Lapse Act. The due process standards

of Mullane apply to an “adjudication” that is “to be accorded

finality.” The Court in Mullane itself distinguished the

situation in which a State enacted a general rule of law

governing the abandonment of property.

454 U.S. at 535, 102 S.Ct. at 795 (footnote omitted).’

County Line may have rights flowing from existing administra-

tive remedies. Before opening for business, County Line must

obtain a certificate of occupancy. Grand Prairie, Tex., Ordinances

§ B-1001. To obtain a certificate, the premises must be properly

zoned. See id. If the City denies County Line’s application for

failure to have proper zoning (no SUP), the denial could be

’ The Court similarly rejected the owners’ argument that they were entitled to

specific notice and hearing based on Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586,

29 L.Ed.2d 90 (1971) (notice and hearing before driver’s license suspension);

Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) (notice

and hearing before pre-judgment replevin order); Memphis Light, Gas & Water

Div. v. Craft, 436 U.S. 1, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978) (notice and

hearing before termination of service by public utility). The Court noted that the

above cases are different because, in those cases, the interests were “taken only

after a specific determination that the deprivation was proper.” 454 U.S. at 537,

102 S.Ct. at 796 (footnote omitted).

SS

23a

_—

- appealed to the zoning board of adjustment and appeals. In this

way, the zoning board would have the jurisdiction and opportunity

to hear the issue of the SUP extinguishment. If County Line

obtained no relief from the zoning board, it could appeal the

matter in state court. In this way, the decision of the zoning board

and that of the courts are “to be accorded finality” and at these

stages, we presume County Line will be given an opportunity to

be heard. See Texaco, 454 U.S. at 535, 102 S.Ct. at 795.

B. Other Federal Claims

From a review of the pleadings we determine that, in addition

to its procedural due process claim, County Line asserts that the

ordinance violates County Line’s rights to substantative due

process and equal protection by being arbitrary and capricious and

further that the termination constitutes an improper taking under

the fifth and fourteenth amendments. County Line also asserts

pendant state law violations. Both parties moved for summary

judgment on the issues of procedural due process and state law

violations. The district court’s opinion did not address the other

federal claims asserted by County Line. Thus, the claims are still

pending before the district court. We observe that the district

court may stay consideration of additional claims pending exhaus-

tion by County Line of its administrative remedies, if any, or the

district court may proceed to resolve these remaining matters.

Il. CONCLUSION

Accordingly, we affirm the district court’s grant of summary

judgment for the City on the procedural due process issue. We

remand the case for further consideration of the other federal

claims and state claims pending any further administrative pro-

ceedings initiated by the appellant. AFFIRMED IN PART AND

REMANDED.

24a

APPENDIX E

IN THE UNITED STATES COURT OF APPEALS

For THE FIFTH CirRculirT

No. 87-1304

County Line Joint Venture,

Plaintiff-Appellant,

versus

CiTy OF GRAND PRAIRIE, TEXAS,

Defendant-Appellee.

Appeal from the United States District Court for the

Northern District of Texas

ON PETITION FOR REHEARING AND SUGGESTION

FOR REHEARING EN BANC

(Opinion 03/18/88, 5 Cir., 198 , F.2d )

(April 19, 1988)

Before CLARK, Chief Judge, GEE and BRIGHT™, Circuit

Judges.

PER CURIAM:

& The Petition for Rehearing is DENIED and no member of

this panel nor Judge in regular active service on the Court having

requested that the Court be polled on rehearing en banc, (Federal

Rules of Appellate Procedure and Local Rule 35) the Suggestion

for Rehearing En Banc is DENIED.

© The Petition for Rehearing is DENIED and the Court

having been polled at the request of one of the members of the

Court and a majority of the Circuit Judges who are in regular

active service not having voted in favor of it, (Federal Rules of

25a

Appellate Procedure and Local Rule 35) the Suggestion for

Rehearing En Banc is also DENIED.

© A member of the Court in active service having requested a

poll on the reconsideration of this cause en banc, and a majority

of the judges in active service not having voted in favor of it,

rehearing en banc is DENIED.

ENTERED FOR THE COURT:

/s/ CHARLES CLARK

CHIEF JUDGE

* Senior judge from the 8th Circuit Court of

Appeals, sitting by designation.

EE

26a

APPENDIX F

ORDINANCE No. 2750

AN ORDINANCE AMENDING THE ZONING MAP AND

ORDINANCE SHOWING THE LOCATION, BOUNDARY

AND USE OF CERTAIN PROPERTY BY THE GRANT-

ING OF A SPECIFIC USE PERMIT FOR ON-SITE USE OF

ALCOHOLIC BEVERAGES AT 2515-H WEST JEFFER-

SON, TO WIT: TRACT 6-I OUT OF THE TAPLEY HOL-

LAND SURVEY, ABSTRACT 750 TARRANT COUNTY,

TEXAS; SAID ZONING MAP AND ORDINANCE

PASSED ON JANUARY 27, 1971, AND RECORDED IN

BOOK 8, PAGES 405 TO 509 OF THE ORDINANCE

RECORDS OF THE CITY OF GRAND PRAIRIE, TEXAS;

REPEALING ALL ORDINANCES OR PARTS OF ORDI-

NANCES IN CONFLICT HEREWITH; CONTAINING A

SAVINGS CLAUSE; AND TO BECOME EFFECTIVE

UPON ITS PASSAGE AND APPROVAL.

WHEREAS, the owners of the property described hereinbelow

filed application with the City of Grand Prairie, Texas, petitioning

an Amendment of the Zoning Ordinance and Map of said City so

as to obtain a specific use permit to allow on-site use of alcoholic

beverages at 2515-H West Jefferson on said property which is

presently zoned Commercial Office; and

WHEREAS, the Planning and Zoning Commission of Grand

Prairie, Texas, held a public hearing on said application on

August 23, 1976 after written notice of such public hearing before

the Planning and Zoning Commission on the proposed specific

use permit for on-site use of alcoholic beverages at 2515-H West

Jefferson had been sent to owners of real property lying within

200 feet of the property on which the specific use permit for

on-site use of alcoholic beverages at 2515-H West Jefferson is

proposed, said Notice having been given not less than ten (10)

27a

days before the date set for hearing to all such owners who

rendered their said property for City taxes as the ownership

appears on the last approved City Tax Roll, and such Notice

being served by depositing the same, properly addressed and

postage paid, in the City Post Office; and

WHEREAS, after consideration of said application, the Plan-

ning and Zoning Commission of the City of Grand Prairie, Texas

voted unanimously to recommend to the City Council of Grand

Prairie, Texas, that a specific use permit be granted to allow

on-site use of alcoholic beverages at 2515-H West Jefferson on

said property; and

WHEREAS, Notice was given of a further public hearing to be

held by the City Council of the City of Grand Prairie, Texas, in

the City Hall Plaza Building at 7:30 o’clock P.M. on August 31,

1976, to consider the advisability of amending the Zoning Ordi-

nance and Map as recommended by the Planning and Zoning

Commission, and all citizens and parties at interest were notified

that they would have an opportunity to be heard, such Notice of

the time and place of such hearing having been given at least

fifteen (15) days prior to such hearing by publication in the

Grand Prairie Daily News, Grand Prairie, Texas, a newspaper of

general circulation in such municipality; and

WHEREAS, all citizens and parties at interest have been given

an opportunity to be heard on all the matter of the proposed

specific use permit and the City Council of the City of Grand

Prairie, Texas, being informed as to the location and nature of the

specific use proposed on said property, as well as the nature and

usability of surrounding property, have found and determined that

the property in question, as well as other property within the city

limits of the City of Grand Prairie, Texas, has changed in

character since the enactment of the original Zoning Ordinance

to the extent that a specific use may be made of said property as

herein provided and by reason of changed conditions, does con-

aaa a ah

24a

sider and find that this amendatory Ordinance should be enacted

since its provisions are in the public interest and will promote the

health, safety and welfare of the community.

NOW, THEREFORE, BE IT ORDAINED BY THE CITY

COUNCIL OF THE CITY OF GRAND PRAIRIE, TEXAS:

That the Zoning Ordinance and Map of the City of Grand

Prairie, Texas, showing the locations and boundaries of certain

districts, and said Zoning Ordinance and Map having been made

a part of an Ordinance entitled:

“AN ORDINANCE AMENDING IN ITS ENTIRETY

CHAPTER 36 OF THE CODE OF ORDINANCES

KNOWN AS THE ZONING ORDINANCE OF THE

CITY OF GRAND PRAIRIE, TEXAS, AS PASSED

AND APPROVED BY THE CITY COUNCIL ON THE

27TH DAY OF JANUARY, 1971. TOGETHER WITH

ALL AMENDMENTS THERETO AND ENACTING A

REVISED ORDINANCE ESTABLISHING AND PRO-

VIDING FOR ZONING REGULATIONS: CREATING

USE DISTRICTS IN ACCORDANCE WITH A COM-

PREHENSIVE PLAN....”

and passed and approved January 27, 1971, recorded in Ordi-

nance Book %, Pages 405 to 509, inclusive, as amended, is hereby

further amended so as to establish a specific use permit numbered

212 for the purpose of on-site use of alcoholic beverages at

2515-H West Jefferson on the following described area:

Tract 6-I out of the Tapley Holland Survey, Abstract 750

Tarrant County, Texas.

Il.

That the following terms and conditions are hereby imposed as

a part of this ordinance:

NONE

It is further provided that in case a section, clause, sentence or

part of this Ordinance shall be deemed or adjudged by a Court of

competent jurisdiction to be invalid, then such invalidity shall not

affect, impair or invalidate the remainder of this Ordinance.

IV.

All ordinances or parts of ordinances in conflict herewith are

specifically repealed.

V.

That this Ordinance shall be in full force and effect from and

after its passage and approval.

a aaamaaa aaa aaa teats aaa annnmemenene tne:

30a

PASSED AND APPROVED BY THE CITY COUNCIL OF

THE CITY OF GRAND PRAIRIE, TEXAS, this the 31st day

of August, 1976.

/s/_ _WELDON PARKHILL

Mayor, City of Grand Prairie, Texas

ATTEST:

/s/ MELBA FLAGG

City Secretary

APPROVED AS TO FORM AND

LEGALITY:

/s/_ R. CLAYTON HUTCHINS

P&Z Case No. 760203

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PLANNING & ZONING COMMISSION

CITY COUNCIL

CASE NO. 760203

APPLICANT:___DEB_WOOD

REQUEST: ___C-O7SU_ON SITE ALCOHOLIC BEV.

32a

APPENDIX G

ORDINANCE No. 3745

AN ORDINANCE AMENDING ORDINANCE NO. 2299,

BEING THE COMPREHENSIVE ZONING ORDINANCE

OF THE CITY OF GRAND PRAIRIE, TEXAS, BY ADD-

ING THERETO A NEW SECTION B-713 PROVIDING

FOR AUTOMATIC TERMINATION OF SPECIFIC USE

PERMITS; CONTAINING A SAVINGS CLAUSE; RE-

PEALING ALL ORDINANCES IN CONFLICT HERE-

WITH; AND TO BECOME EFFECTIVE UPON PASSAGE,

APPROVAL AND PUBLICATION.

WHEREAS, the Planning and Zoning Commission of the City

of Grand Prairie, Texas, met in regular session on the | 1th day of

February, 1985, after publication in the Grand Prairie Daily News

on the Ist day of February, 1985; and

WHEREAS, after consideration and public hearing the Plan-

ning and Zoning Commission recommended to the City Council

of the City of Grand Prairie, Texas, that Ordinance No. 2299,

same being the comprehensive zoning ordinance of the City, be

amended to provide for automatic termination of specific use

permits.

NOW, THEREFORE, BE IT ORDAINED BY THE CITY

COUNCIL OF THE CITY OF GRAND PRAIRIE, TEXAS:

SECTION 1: THAT Ordinance No. 2299, same being the

Comprehensive Zoning Ordinance of the City of Grand Prairie,

Texas, is hereby amended by adding thereto a new Section B-713

related to termination of specific use permits, which section shall

read in its entirety as follows:

33a

“B-713. Termination of Specific Use Permits.

A. All specific use permits approved in accordance with the

provisions of this ordinance in its original form or as hereafter

amended shall automatically terminate upon cessation of the use

for a period of six months, regardless of the intention of the

owner.

B. Any specific use permit granted by the City Council shall

automatically terminate if a building permit has not been ob-

tained on the premises within one year from the date the ordi-

nance granting the specific use permit is adopted.

C. On any tract of land for which a specific use permit has

been granted and the use has ceased as of the date of this

ordinance, such specific use permit shall automatically terminate

six months after the adoption of this ordinance unless the use has

been reinstated by that time.

D. Specific use permits in existence as of the date of this

ordinance shall automatically terminate one year from the date of

this ordinance if a building permit has not been obtained by that

time.”

SECTION 2: If any section, subsection, sentence, clause,

phrase or portion of this ordinance is for any reason held invalid or

unconstitutional by any court of competent jurisdiction, such shall

be deemed a separate, distinct and independent provision and

such holding shall not affect the validity of the remaining portions

thereof.

SECTION 3: All ordinances or parts of ordinances in conflict

with this ordinance are hereby repealed.

SECTION 4: THAT this ordinance shall be in full force and

effect from and after its passage, approval and publication.

34a

PASSED AND APPROVED BY THE CITY COUNCIL OF

THE CITY OF GRAND PRAIRIE, TEXAS, this the 19th day

of February, 1985.

/s/_ J. V. Depo Ill

MAYOR, CITY OF

GRAND PRAIRIE, TEXAS

ATTEST:

/s/ Sue SHAWVER

City Secretary

35a

APPENDIX H

Crry oF GRAND PRAIRIE

DEPARTMENT OF COMMUNITY DEVELOPMENT

Zoning Board of Adjustments and Appeals

Submittal Date: 12/17/85

Fee: $100

Received:

PLEASE TYPE OR PRINT

DESCRIPTION OF PROPERTY: The following information

shall be provided:

LEGAL DESCRIPTION:

Metes and Bounds description of subject property or Lot

Block Addition Name: SEE EXHIBIT

“A” ATTACHED HERETO

GENERAL DESCRIPTION 2515 H. W. Jefferson Blvd.

OF PROPERTY LOCATION: Grand Prairie, Texas 75051

(ADDRESS)

PRESENT ZONING OF Commercial Office

SUBJECT PROPERTY:

REASON FOR APPEAL: See attached Exhibit “E”

PLEASE TYPE OR PRINT

36a

OWNER(S): County Line Joint Venture

ADDRESS: 12770 Coit Road

Suite 1009 — L.E. 54

Dallas, Texas 75251

PHONE#: (214) 392-9728

APPLICANT: Jose G. Gomez

ADDRESS: 1817 Lewis Trail

Grand Prairie, Texas 75052

PHONE#: (214) 601-7816

I hereby authorize Joseph G. Werner and Jane G. Allen to act

in the capacity as my agent for the representation and/or presen-

tation of this request.

Signature of Owner:

Agent (Please Print): Joseph G. Werner and Jane G. Allen

Signature of Agent:

Address of Agent: 3100 InterFirst Plaza — 901 Main Street

Dallas, Texas 75202

Phone # of Agent: (214) 670-0597

I understand that it is necessary for me or my authorized agent

to be present at the Zoning Board of Adjustments and Appeals

public hearing.

37a

Signature of Owner:

Printed Name: William E. Schaid, Managing Partner of

County Line Joint Venture

Mailing Address: 12770 Coit Road

Suite 1009 — L.B. 54

Dallas, Texas 75251

Phone # of Owner: (214) 392-9728

THE FOLLOWING SHALL BE ATTACHED TO THIS

APPLICATION:

A Survey or plot plan of the subject property, showing the

location of all structures and in a suitable submittal format as

prescribed by the Department of Community Development (at-

tached); and

A current property tax certification.

38a

APPLICATION FOR

ZONING BOARD OF

ADJUSTMENTS AND APPEALS

November 1985

———————————————

39a

THE ZONING BOARD OF ADJUSTMENTS AND

APPEALS

The Zoning Board of Adjustments and Appeals shall review

and act upon appeal requests for an advertised public hearing,

held once each month. When the board judges that the public

convenience and welfare will be substantially served and the

appropriate use of the neighboring property will not be substan-

tially or permanently injured, the Board may, after public notice

and public hearing, and subject to appropriate conditions and

safeguards, authorize special exceptions to the ordinance. Specifi-

cally, the Board may:

1) Permit the reconstruction, extension or enlargement of a

building occupied by a non-conforming use.

2) Permit modification of the height, yard, area, coverage and

parking regulations on land which has restricted area,

shape, or slope.

3) Require the discontinuance of non-conforming uses of land

or structure.

4) Hear appeals of any person aggrieved or affected by the

decision of an administrative officer.

PUBLIC HEARINGS

The Zoning Board of Adjustments and Appeals meets on the

3rd Monday of each month.

DEADLINE

The deadline for filing an application is 12:00 noon on the

Wednesday four (4) weeks prior to the applicable meeting.

40a

FEES

The application fee for an appeal to the Zoning Board of

Adjustments and Appeals is $100.00.

SUBMISSION

The applicant is responsible for submitting, at the time applica-

tion is made, ten copies of the plot plan and any other required

information.

APPLICATION PRESENTATION

At the applicable public hearing, an applicant shall have a

maximum of five (5) minutes to make a formal presentation of

the project proposal. Although presentation of slides at the public

hearing is at the discretion of the applicant, facilities for slide

projection will be available. However, the applicant shall assume

full responsibility for providing a properly prepared and compati-

ble slide carousel to staff prior to the public hearing.

Use of transparencies on an overhead projector is another

effective means of material presentation. However, due to the size

and arrangement of the City Council Chambers, hand-held or

tripod-mounted opaque renderings generally prove to be ineffec-

tive means of presentation. The use of slides is usually the

preferred means of visual aid for project presentation.

IT IS VITALLY IMPORTANT TO YOU AS AN APPLI-

CANT TO RETURN A FULLY COMPLETED APPLI-

CATION PACKAGE. WITHOUT A COMPLETE

APPLICATION ON FILE, THE VARIANCE REQUEST

CANNOT BE PROCESSED AND WILL NOT BE PLACED

ON A PUBLIC HEARING AGENDA.

4la

ZONING BOARD OF ADJUSTMENTS

TYPICAL DIAGRAM FOR APPEAL

O

ACCEPTED BY

} a

| wouse

AODITION =

| |

~ | APPLICANT

Nea 4 EE

-.

ae | EXISTING HOUSE

| ew,

4 FRONT BUILDING LINE

|

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L 5 PROPERTY LINE a!

ADORESS OF PROPERTY

NORTH

SCALE: =

A final survey shevid have thie information and may be substituted.

42a

EXHIBIT “A”

BEING all that certain lot, tract or parcel of land situated in

the TAPLEY HOLLAND SURVEY, ABSTRACT NO. 750,

City of Grand Prairie, Tarrant County, Texas, and being more

particularly described as follows:

BEGINNING at an iron rod found for corner in the South line

of West Jefferson Boulevard at the Northwest corner of a called

25 acre tract owned by E. D. Douthitt, said corner being 475 feet,

Easterly as measured along the South line of said West Jefferson

Boulevard from the Westerly line of said TAPLEY HOLLAND

SURVEY, ABSTRACT NO. 750 and North 81 deg. 24 min.

58 sec. East, 418.65 feet from the Southeast corner of the

intersection of West Jefferson Boulevard with Great Southwest

Parkway;

THENCE North 81 Deg. 24 Min. 58 Sec. East, along the

South Line of West Jefferson Boulevard 418.60 feet to an iron rod

found for corner;

THENCE South 00 deg. 38 min. 04 sec. East, 1084.09 feet to

an iron rod found for corner in the North line of Sherman Street;

THENCE North 89 deg. 28 min. 07 sec. West, along the

North line of Sherman Street, 412.80 feet to an iron rod found for

corner in the West line of aforementioned called 25 acre tract of

land owned by E. D. Douthitt;

THENCE North 00 deg. 44 min. 22 sec. West, along the West

line of said Douthitt tract, 1017.80 feet to the PLACE OF

BEGINNING and containing 9.980 Acres of Land and also

being known as 2515 W. Jefferson Boulevard, Grand Prairie,

Texas.

OO

43a

EXHIBIT “B”

On November 27, 1985, Owner’s tenant, Jose G. Gomez, made

application for an alcoholic beverage license, a dance hall license

and a mechanical amusement device license for 2515H W.

Jefferson Blvd. in Grand Prairie (copies of the applications are

attached). The City Secretary denied the applications on Decem-

ber 2, 1985, stating that under Section B-713 of Grand Prairie’s

Comprehensive Zoning Ordinance (the “Ordinance”’) the spe-

cific use permit on 2515H W. Jefferson had expired, amd that

under Section B-710 and B-711 of the Ordinance, Gomez»would

be unable to obtain a new specific use permit to serve alcoholic

beverages because he did not operate a restaurant.

Owner appeals the decision by the City Secretary for the

following reasons:

1. The City Secretary erroneously concluded that the specific

use permit had expired. Owner’s building at 2515 W. Jefferson

has been continously used to sell alcoholic beverages on premises

in the same manner for approximately 20 years.

2. Sections B-710 and B-711 of the Zoning Ordinance are

invalid because they are in violation of the Texas Alcoholic

Beverage Code (the “TABC”). Section 109.31 of the TABC

provides that “a City by charter may prohibit the sale of liquor in

all or part of the residential sections of the City.” Section 1.06 of

the TABC provides:

Unless otherwise specifically provided by the terms of

this Code, the manufacture, sale, distribution, transpor-

tation, and possession of alcoholic beverages shall be

governed exclusively by the provisions of this Code.

44a

Article XI, Section 5, of the Texas Constitution provides in

pertinent part that:

[N]o charter or any ordinance passed under said char-

ter shall contain any provision inconsistent with the

Constitution of the State, or of the general laws enacted

by the Legislature of this State....

The Ordinance prohibits the sale of alcoholic beverages for on-

premise consumption except in restaurants that conform to the

provisions of Sections B-710 and B-711. Owner’s property is not

in a residential area as provided by Section 109.31 of the TABC,

but is, instead, in an area zoned commercial office. Further,

Grand Prairie did not enact its prohibitions on the sale of

alcoholic beverages by charter but instead did so by a zoning

ordinance. The Legislature has stated in Section 1.06 that the sale -

of alcoholic beverages shall be governed exclusively by the provi-

sions of the TABC. Grand Prairie’s Zoning Ordinance is in

violation of the TABC and the Texas Constitution.

3. Grand Prairie’s Zoning Ordinance concerning on-premise

consumption of alcoholic beverages is an unconstitutional taking

of property and violates the Owner’s rights under the Fourteenth

Amendment of the United States Constitution.

In the event the Board of Adjustments finds that the City

Secretary acted properly in denying the Application of Owner’s

tenant for the licenses, pursuant to article 1011(g)(3) of the

Texas Revised Civil Statutes Annotated and the provisions of the

Ordinance, Owner requests the Board of Adjustments to grant a

variance and/or special exception to the Ordinance to permit

Owner’s tenant to obtain an alcoholic beverage license, a dance

hall license and a mechanical amusement device license in

accordance with his application. Owner would show that (1) such

a variance and/or special exception would not be contrary to the

public interest, (2) that special conditions exist in this situation

Se oe

45a

because Owner’s building has been continuously used in the same

manner for an extended period of time, and the use cannot be

changed due to economic conditions and in view of existing leases

on the building to which owner is contractually bound, and

(3) that Owner and his tenant will suffer undue economical

hardship if the variance and/or special exception is not granted.

46a

City of MEMO & ROUTING SLIP

ROUTE TO: CLAYTON HUTCHINS

City Manager Planning

Assistant City Mgr. Police

City Secretary Public Works

Finance Purchasing

Fire Tax

* | City Attorney Inspection

Parks & Recreation Water

Personnel Health

Municipal Court Library

__ INFORMATION __ SEE ME __ CENTRAL FILE

X APPROVAL/SIG. | __COMMENTS/REC. _ TYPING

~ ACTION ~_ REPLY TO ~ COPIES

~_ YOUR FILES ~ AS REQUESTED —_ CIRCULATE

REMARKS: DOES THE ZONING BOARD OF ADJUSTMENTS HAVE JURIS-

DICTION OVER THE CASES AT.

(1) 2332 NORWICH LN. YES

(2) 3830 VERDE WOODS YES

(3) 2515 H. W. JEFFERSON The Board has no jurisdiction RCH 1/7/86

FROM /s/ Jerry DATE JAN 2/86

PRIORITY

Immediate _X As Soon As Possible ___ At Your Convenience

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